Susan Estrich: Rand Paul's persistence

March 9, 2013 8:05:03 PM

I'm not your usual Rand Paul fan. But intellectual honesty is a pretty refreshing trait in Washington, and in this case, it had the added attraction of being a much-needed jolt to a sort of complacency about civil liberties under a nice Democratic administration that seems to have overtaken the left.

Sen. Rand Paul of Kentucky started talking to draw attention to the idea that the Constitution should be consulted in determining whether the government would have the right to target a drone strike here at home on a United States citizen. Until he stood up, everybody was happy to hear that the administration had no intention of killing any citizens on U.S. soil by drone attack. Why push the issue of whether they could?

I'm not pretending it's obvious or easy.

It took the White House a day, but they managed to refine the question into one they could answer, and that answer came in a letter from the attorney general. "It has come to my attention that you have now asked an additional question: 'Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?' The answer to that question is no."

How else would you answer it?

On the other hand, what does "not engaged in combat" exactly mean? Not a member of al-Qaida?

Ask any American president offered the opportunity to launch a surgical strike at a terrorist "base" in the United States to avoid a threatened attack on our soil -- how could it not be a yes? Any court asked to approve that right? How could they say no?

But even so.

Paul is right to be standing there, as a legislator, raising a hue and cry about constitutionality, which is the responsibility of every elected official to consider and respect. In doing so, he reminds us to look in the mirror, to take seriously what we are dancing around, to ask ourselves what it means that such questions are now being asked and what should guide us, or what we need to claim as guides, in answering them.

In short, if we can't define all of the requirements that must be met for the use of a drone, here or abroad, at least we can focus on the process stuff and insist that there be debate and policy, attention to detail, legal justification, and even judges and warrants to make clear how carefully such decisions must be made.

I used to laugh at people who were willing to "make do" with changes in "process." But having seen just how poorly important decisions can be made has given me pause. If you have to make a written request, you think harder. If you have to write it down and then support it in writing and before a court of judges, you are going to work very hard with your client to make sure that every step is followed, to make sure that your target is who and where it's supposed to be.

In the wake of the new letter, everyone is declaring victory. Paul got the letter. The administration got its nominee. The only unhappy folks are some Republican critics who weren't as impressed as I was with their colleague's commitment to civil liberties.

But these kinds of questions don't really go away; they just keep getting harder. And for questions with no answers, there is only process.